Watchdog Agencies Snarl Over Ethics Rule

Watchdogs Snarl Over Ethics Rule

Judicial Review Council Fights Proposal To Restrict Lawyers

December 13, 1992|By CRAIG W. BAGGOTT; Courant Staff Writer

Two of the state's premier watchdog agencies -- the State Ethics Commission and the Judicial Review Council -- are in the uncomfortable and embarrassing position of fighting each other, an increasingly bitter battle that could end up in the courts.

At issue: whether the director of the council, which oversees the conduct of state judges, should be allowed to practice law before state judges.

Lawyers for the ethics commission say no, that the dual roles pose a clear conflict of interest for the lawyer in his role as review council director. A proposal being considered by the commission would effectively bar the director from courtroom work.

Lawyers for the council say yes, arging that potential conflicts are minimal and can be dealt with individually, and that the ethics commission, as a creature of the executive and legislative branches of government, should not interfere with a judicial agency.

Both sides have been spewing increasingly contemptuous comments each other's way. And both appear equally chagrined about the public spat.

"It's terrible," said R. Bartley Halloran, chairman of the review council. "I think we all look like idiots. We've got two ethical commissions fighting with each other."

In fact, it appears to be more an issue of independence than of ethics. Both sides agree that F. Timothy McNamara, the part-time council director and a well-known Hartford trial lawyer, is likely to have a conflict at some point. What they disagree on is how to deal with it.

Plofsky says the solution is simple -- avoid the problem.

Instead of having a trial lawyer, he said Friday, the council could hire a retired lawyer or judge or a lawyer who doesn't do

trial work.

The American Bar Association agrees. In a set of model rules it recommends for all states, the association says the executive director of a review council should be either full-time or, if there is not enough work, "someone who is not engaged in active practice of law should be retained or designated to hold this position on a part-time basis." Though those rules are not binding, they have been widely adopted, a spokeswoman for the bar association said.

But Halloran, who took over as chairman of the review council earlier this year, disagrees with Plofsky and the bar association. Halloran has rid the council of many of the problems that led to its reputation as a secretive, ineffective organization; for example, it now has an office and listed phone number.

Courtroom lawyers understand the nature and dynamics of the courtroom, Halloran said, and are in the best position to assess complaints against judges.

But the issue, and the question of independence, may go further.

In addressing the ethics panel Monday and again in an interview Friday, Halloran said any argument that excludes a trial lawyer from the executive director's position may also exclude trial lawyers from the review council itself.

The council has 12 members: six non-lawyers, three lawyers and three judges.

"I don't see the difference between me and the executive director" of the council, Halloran said Friday, adding that both have access to the same information about judges and are trial lawyers.

Plofsky has said the proposal won't necessarily bar lawyers from serving on the council. But Jeffrey Mirman, a lawyer hired by the council to represent it on the issue, said, "The practical effect ... would be to prohibit any attorney from ever serving as either a member of the JRC or as its executive director."

Such a prohibition may not be necessary. Halloran said he and possibly the other lawyers on the council would resign if the ethics proposal were adopted and upheld.

Halloran said the council has agreed to take whatever steps are necessary to fight the proposal, including a court challenge. He and Mirman have said such a challenge could hinge on interpretations of the state Constitution's provisions for separation of the branches of government.

Plofsky said he is confident the ethics commission's jurisdiction over the review council would be upheld in court. "The JRC simply cannot be left to regulate itself," he said.

Plofsky also said he may ask the legislature next year specifically to prohibit a trial lawyer from serving as executive director of the review council.

The issue may end up in the legislature in any case.

State Sen. Joseph H. Harper Jr., D-New Britain, who successfully pushed legislation to reform the council this year, said he expects the Program Review and Investigations Committee will check the council's progress during 1993